Academic journal article William and Mary Law Review

The Lives of John Marshall

Academic journal article William and Mary Law Review

The Lives of John Marshall

Article excerpt

INTRODUCTION

Near the end of John Ford's masterpiece The Man Who Shot Liberty Valence, (1) a newspaper reporter observes, "when the legend becomes fact, print the legend." (2) More than a few popular legends about John Marshall have been printed as fact over the years: that he was a zealous partisan committed to striking a blow at Jeffersonian democracy (and of course at Thomas Jefferson himself); (3) that he was a fine politician but a poor lawyer; (4) that he was a judicial activist and reactionary; (5) and that he intellectually dominated the other justices with whom he served on the Court. (6) Another popular legend holds that Marshall and Andrew Jackson were implacable enemies, as reflected in Jackson's reputed remark, "John Marshall has made his decision, now let him enforce it." (7) Legend further has it the Liberty Bell cracked upon announcing the news of Marshall's death. (8)

None of these legends is factually correct--the Liberty Bell, for instance, was already cracked when it announced Marshall's death. (9) The proliferation of these and other legends nonetheless is as good a demonstration as there is of Jack Balkin's astute observation that judicial greatness is a function of the future's use of the past. (10) From the moment Marshall died, one could have said of Marshall, as Edwin Stanton said of Lincoln at the moment he succumbed to an assassin's bullet, "now he belongs to the ages." (11)

The objective of this Article is to provide an overview of what the ages have made of John Marshall. My concern is not his life but his image. Hence, I place greater emphasis on how his image has been manipulated throughout American history than on his actual deeds and accomplishments. (12) My purpose is both to trace Marshall's shifting image(s) from the time of his death through the dawning of the modern era and to test the criteria that Balkin has suggested for measuring judicial greatness. The materials relevant to my inquiry are not so much the Court's official opinions but the public statements and sentiments of national political leaders, Supreme Court justices, and others who have helped to shape public images of Marshall over time.

This Article consists of six sections. The first five sections briefly sketch John Marshall's image in different eras--the Jacksonian, the Civil War and Reconstruction, the Progressive, the New Deal, and the dramatic first few years of the Warren Court. The final section considers some possible lessons that can be derived from this survey regarding Marshall's place in our history, including some relevant criteria for determining judicial greatness. The criteria, which cut across ideological and partisan divisions, include: (1) the longevity of service on the Court; (2) substantial participation in the decisions in some of the Court's most socially and politically significant opinions over time; (3) the basic qualities of a jurist's decisions (including, but not limited to, their relative craftsmanship particularly in terms of a distinctive writing style, creativity, influence, and durability); (4) leadership on and off the Court (including developing strong support from national political leaders and academic elites over time); and (5) distinctive or exemplary judicial temperament. For a jurist to qualify for greatness, he or she should satisfy not some but all of these criteria. John Marshall unquestionably meets all of them and thus easily qualifies as a great justice.

I. THE JACKSONIAN ERA

It is tempting to think that in the few decades immediately following John Marshall's death there was a distinct image of Marshall that dominated the public consciousness. In fact, there was not. Instead, in the few decades immediately following his death, there was more than one salient image of Marshall put forward to the public, depending on the politics of the observers or commentators. …

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